Thursday, June 28, 2018
While the nation was distracted by the crisis of children being separated from their parents at the US border, a Supreme Court decision impacting abortion providers was less noticed. In The National Institute of Family and Life Advocates, dbs NIFLA, et al v. Becerra, Attorney General of California, et al, the court decided that free speech protections prevented California from requiring anti-choice organizations to provide information on abortion availability as part of their services.
Justice Breyer pointed out the inconsistency with Planned Parenthood v Casey requires abortion providers to distribute certain kinds of information to clients. "As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and 'what is sauce for the goose is normally sauce for the gander'" Justice Thomas attempted to distinguish the cases by arguing that the 1992 Planned Parenthood case involved a medical procedure. Justice Thomas responded "Really? No one doubts that choosing an abortion is a medical procedure involves certain health risks. But the same is true of carrying a child and giving birth." Justice Breyer noted that childbirth is 14 times more likely to result in the woman's death than abortion.
Justice Breyer might have added that US maternal death rates are the highest in the developed world.
I would have said that perhaps it is time for laws imposing speech on abortion providers be revisited. But given this week's news of Justice Kennedy's retirement, maybe not.